(a) Commencing on the effective date of the regulations adopted pursuant to this section, the director may assess an administrative penalty against a licensee of a health facility licensed under subdivision (a) , (b) , or (f) of Section 1250 for a deficiency constituting an immediate jeopardy violation as determined by the department up to a maximum of seventy-five thousand dollars ($75,000) for the first administrative penalty, up to one hundred thousand dollars ($100,000) for the second subsequent administrative penalty, and up to one hundred twenty-five thousand dollars ($125,000) for the third and every subsequent violation. An administrative penalty issued after three years from the date of the last issued immediate jeopardy violation shall be considered a first administrative penalty so long as the facility has not received additional immediate jeopardy violations and is found by the department to be in substantial compliance with all state and federal licensing laws and regulations. The department shall have full discretion to consider all factors when determining the amount of an administrative penalty pursuant to this section.
(b) Except as provided in subdivision (c), for a violation of this chapter or the rules and regulations promulgated thereunder that does not constitute a violation of subdivision (a), the department may assess an administrative penalty in an amount of up to twenty-five thousand dollars ($25,000) per violation. This subdivision shall also apply to violation of regulations set forth in Article 3 (commencing with Section 127400 ) of Chapter 2 of Part 2 of Division 107 or the rules and regulations promulgated thereunder.
The department shall promulgate regulations establishing the criteria to assess an administrative penalty against a health facility licensed pursuant to subdivisions (a) , (b) , or (f) of Section 1250 . The criteria shall include, but need not be limited to, the following:
(1) The patient's physical and mental condition.
(2) The probability and severity of the risk that the violation presents to the patient.
(3) The actual financial harm to patients, if any.
(4) The nature, scope, and severity of the violation.
(5) The facility's history of compliance with related state and federal statutes and regulations.
(6) Factors beyond the facility's control that restrict the facility's ability to comply with this chapter or the rules and regulations promulgated thereunder.
(7) The demonstrated willfulness of the violation.
(8) The extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring.
(c) The department shall not assess an administrative penalty for minor violations.
(d) The regulations shall not change the definition of immediate jeopardy as established in this section.
(e) The regulations shall apply only to incidents occurring on or after the effective date of the regulations.
(f) If the licensee disputes a determination by the department regarding the alleged deficiency or alleged failure to correct a deficiency, or regarding the reasonableness of the proposed deadline for correction or the amount of the penalty, the licensee may, within 10 working days, request a hearing pursuant to Section 131071 . Penalties shall be paid when all appeals have been exhausted and the department's position has been upheld.
(g) For purposes of this section, “immediate jeopardy” means a situation in which the licensee's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury or death to the patient.
(h) In enforcing subdivision (a) the department shall take into consideration the special circumstances of small and rural hospitals, as defined in Section 124840 , in order to protect access to quality care in those hospitals.
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